MEMORANDUM OPINION

Court of Appeals of Texas,

Fort Worth.

Elizabeth SANTANA, Individually Appellant and as Personal Representative of the Estate of Rojelio Santana, and as next friend of Diana Santana, Rojelio Santana, Jr., Marissa Santana, Pauline Santana and Frederico Santana

v.

ARPIN AMERICA MOVING SYSTEM, Appellees LLC and Paul Arpin Van Lines, Inc.

No. 2-08-132-CV.

Aug. 13, 2009.

Panel: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

MEMORANDUM OPINION

See Tex.R.App. P. 47.4.

SUE WALKER, Justice.

I. INTRODUCTION

This is a summary judgment appeal. Appellant Elizabeth Santana, individually and as personal representative of the estate of Rojelio Santana, and as next friend of Diana Santana, Rojelio Santana, Jr., Marissa Santana, Pauline Santana, and Frederico Santana (hereinafter collectively referred to as “Appellant”) raises twelve points challenging the trial court’s summary judgments for Appellees, Arpin America Moving System, LLC (“AAMS”) and Paul Arpin Van Lines, Inc. (“PAVL”). Appellant claims that the summary judgment evidence establishes that genuine issues of material fact exist on her claims against both AAMS and PAVL. For the reasons set forth below, we will affirm the trial court’s summary judgment.

II. FACTUAL BACKGROUND

Rojelio “Rocky” Santana (“Rocky”) was a commercial driver; on August 7, 2004, in the capacity of an independent contractor, he drove a commercial vehicle owned by AAMS and leased by PAVL, hauling household goods from Nesbit, Mississippi, to Dallas, Texas. Independent contract drivers like Rocky were permitted to hire “lumpers” to help them load and unload the trucks; the independent contract drivers were responsible for supervising and paying the “lumpers” they chose to hire. AAMS and PAVL maintain no contract or relationship with “lumpers” hired by the driver.

PAVL is a federally registered motor carrier with a Department of Transportation (“DOT”) number.

Rocky decided to hire two “lumpers,” Alejandro Cisneros and Alejandro Ramirez, to assist him on the trip. Per AAMS policy, “lumpers” are not permitted to operate trucks under any circumstances. At some point during the return trip, Rocky permitted Ramirez-who did not possess a commercial driver’s license-to drive the eighteen wheeler. AAMS and PAVL did not know Rocky had hired Cisneros and Ramirez as “lumpers” for the trip and did not authorize Ramirez to drive the truck. On August 7, 2004, while Ramirez was driving the truck, it struck a bridge support pillar; Rocky, Cisneros, and Ramirez were all killed.

First responders at the scene referred to the three victims as John Doe A, B, and C. The first responders all testified that John Doe A was driving; pictures of the victims taken at the scene of the accident were referred to in the depositions of the first responders and in the summary judgment affidavits of persons acquainted with Rocky and conclusively establish that Rocky was not John Doe A.

Officer Ron Parker first indicated in his initial accident report that Rocky had been driving, but he later submitted an amendment to the accident report stating that Ramirez had been driving. In any event, Officer Parker, as well as all of the other first responders, consistently and affirmatively testified that John Doe A was the driver and pictures of John Doe A are not pictures of Rocky.

Rocky’s wife brought a wrongful death suit on her own behalf and on behalf of Rocky’s minor children. Ultimately, the trial court granted summary judgments for AAMS and for PAVL on all of Appellant’s claims against them. Appellant perfected this appeal, raising twelve points.

Appellant’s twelve points on appeal, with limited exceptions, do not segregate her arguments and analysis between AAMS and PAVL; the points simply group both defendants together. Liberally construing Appellant’s points, we mirror Appellant’s presentation of her points.

III. APPELLANT’S CAUSES OF ACTION; AAMS’S AND PAVL’S TRADITIONAL AND NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT T

Appellant pleaded causes of action against AAMS for negligence, negligence per se, res ipsa loquitur, negligent entrustment/negligent supervision, and gross negligence. Appellant pleaded causes of action against PAVL as a worker’s compensation nonsubscriber for gross negligence under the “election of remedies” doctrine and for vicarious liability under the doctrines of respondeat superior, statutory employee, and apparent agency.

AAMS filed a no-evidence motion for summary judgment, claiming that no evidence exists to support the causation element of Appellant’s negligence per se claims; that res ipsa loquitur is not a cause of action recognized in Texas; that no evidence of proximate cause exists concerning Appellant’s negligence claims; that no evidence exists in Appellant’s negligent entrustment claims that AAMS entrusted its vehicle to Ramirez and no evidence exists that AAMS knew Ramirez was an unlicensed, reckless driver; that no evidence exists that AAMS acted with the requisite mental state for gross negligence; and that no evidence exists that the doctrines of respondeat superior, actual agency or apparent agency, vice-principal, or statutory employee apply. AAMS contends that Rocky was an independent contractor and that no evidence to the contrary exists.

PAVL filed a no-evidence and a traditional motion for summary judgment. In its no-evidence motion, PAVL claimed that no evidence exists of the following elements of Appellant’s claim for gross negligence: that PAVL was the common law or statutory employer of Rocky; that PAVL acted with gross negligence; and that any gross negligence by PAVL caused the accident. In its traditional motion for summary judgment, PAVL likewise claimed that the summary judgment evidence conclusively negates that PAVL was the common law or statutory employer of Rocky, that PAVL acted with gross negligence, and that any gross negligence by PAVL caused the accident.

IV. SUMMARY JUDGEMENT STANDARDS OF REVIEW

A. No-Evidence Motion

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P .C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)).

Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a mere surmise or suspicion of a fact.   Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Merrell Dow Pharm., Inc. v. Havner, 953 S.W .2d 706, 711 (Tex.1997). A genuine issue of material fact is raised by presenting evidence on which a reasonable jury could return a verdict in the nonmovant’s favor. Moore, 981 S.W.2d at 266; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2513-14 (1986) (interpreting Fed.R.Civ.P. 56).

B. Traditional Motion

A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); see Tex.R. Civ. P. 166a(b), (c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. Summary judgment is proper when parties do not dispute the relevant facts. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.2000).

When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor Co., 135 S.W.3d at 600. If the appellant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the appellee’s summary judgment proof satisfied the less stringent rule 166a(c) burden. Id.

V. THE FEDERAL MOTOR CARRIER SAFETY REGULATION (FMCSR) POINTS

In portions of her first, second, third, fourth, fifth, ninth, and eleventh points, Appellant raises various arguments asserting that the trial court erred by granting summary judgment because the Federal Motor Carrier Safety Regulations  (“FMCSR”) doctrines of statutory employee, nondelegable duty, or vicarious liability apply. Appellees PAVL  and AAMS argue that the summary judgment evidence conclusively established the inapplicablity of the FMCSR doctrines of statutory employee, nondelegable duty, and vicarious liability to the present facts because Rocky was an independent contractor and was not driving when the accident occurred and because Cisneros and Ramirez were not employees of either PAVL or AAMS.

See, e.g., 49 C.F.R. §§ 376.11-.12, 390.3, 390.5, 392.1, 392.60 (2008).

Appellant’s claim against PAVL is limited to a claim for PAVL’s alleged gross negligence because Appellant made an express, written election of remedies, choosing to pursue a Texas Worker’s Compensation Benefits claim as the remedy for any negligence of PAVL. Nonetheless, because Appellant’s allegations of gross negligence against PAVL are premised on these same FMCSR doctrines, PAVL (along with AAMS) challenges their applicability.

The FMCSR define “employee” and “employer.” The FMCSR define an “employee” as

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

49 C.F.R. § 390.5. The statutory definition of an “employer” under the FMCSR reads, “[A]ny person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it … .” Id. (emphasis added).

The summary judgment evidence conclusively establishes that Rocky was an independent contractor  and that he was not driving the commercial motor vehicle at the time of the accident. Independent contractors are statutory employees under the FMCSR definition set forth above only when they are “in the course of operating a commercial motor vehicle.” 49 C.F.R. § 390.5; Pouliot v. Paul Arpin Van Lines, 292 F.Supp.2d 374, 379-80 (D.Conn.2003) (holding “the definition of ‘employee’ in section 390 .5 would apply to an independent contractor while the contractor is driving his commercial motor vehicle on any public or private road or highway”). Because Rocky was not “in the course of operating a commercial motor vehicle” when the accident occurred, he does not meet the FMCSR definition of employee and as a matter of law was not a statutory employee of either AAMS or PAVL. Accord Ill. Bulk Carrier, Inc. v. Jackson, 908 N.E.2d 248, 259 (Ind.Ct.App.2009) (holding driver was not statutory employee under FMCSR); Clarendon Nat’l Ins. Co. v. Johnson, 666 S.E.2d 567, 571 (Ga.Ct.App.2008) (same).

In his summary judgment affidavit, Jack Fuyat, Sr., Senior Vice President of Corporate Affairs for the Arpin Group, Inc., and formerly for Paul Arpin Van Lines, Inc., swears that neither AAMS nor PAVL ever had a contract of employment with Rocky or with Alejandro Ramirez or Alejandro Cisneros and that Rocky was an independent contractor. No controverting summary judgment evidence exists.

As previously mentioned, first responders all testified that John Doe A was the driver and the summary judgment affidavits of persons acquainted with Rocky conclusively establish that the photographs of John Doe A are not photographs of Rocky.

And the summary judgment evidence likewise conclusively shows that Cisneros and Ramirez do not meet the FMCSR definition of “employee” set forth above. The summary judgment evidence establishes that Rocky, not AAMS or PAVL, hired Cisneros and Ramirez. Rocky does not meet the FMCSR definition of “employer” because he is not “a person who owns or leases a commercial motor vehicle.” AAMS owned the commercial motor vehicle and PAVL leased it from AAMS. Because Rocky does not meet the definition of an “employer,” Cisneros and Ramirez cannot qualify as “employees” because they were not “employed by an employer.” Thus, under the facts of this case, the FMCSR statutory employee doctrine of vicarious liability is inapplicable to both Rocky and to Cisneros and Ramirez.

In her ninth point, Appellant argues that a fact issue was presented on her claims of participatory/vicarious liability for respondeat superior, actual and apparent agency, vice principal, and statutory employee. Because the summary judgment evidence conclusively establishes the lack of an employer-employee relationship or of any type of relationship at all between the “lumpers” and either AAMS or PAVL, no genuine issue of material fact exists concerning any of these theories of vicarious liability.

Additionally, PAVL points out that the FMCSR do not apply here because Appellant is not a “member of the public” whom the regulations were designed to protect. The vicarious liability fiction of the statutory employee doctrine applies only to the extent necessary to insure the carrier’s responsibility for the public’s safety. See White v. Excalibur Ins. Co., 599 F.2d 50, 53 (5th Cir.), cert. denied, 444 U.S. 965 (1979), superseded on other grounds by regulation as stated in Simpson v. Empire Truck Lines, Inc., 571 F.3d 475, 475 (5th Cir.2009); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 39, 43 (Tex.App.-Fort Worth 2002, no pet.) (recognizing that FMCSR preempt state law in tort actions in which a member of the public is injured); see also Sharpless v. Sim, 209 S.W.3d 825, 830 (Tex.App.-Dallas 2006, pet. denied) (“Regardless of the type of relationship between the carrier and the driver, however, the carrier is not excused from the regulations that treat the driver as a statutory employee for purposes of liability to the general public ”) (emphasis added); Tamez v. Sw. Motor Transp., Inc., 155 S.W.3d 564, 573 (Tex.App.-San Antonio 2004, no pet.) (recognizing policy underlying FMCSR does not apply as to co-employees of motor carriers injured by their fellow employees’ negligence since they could recover from their employer in workers’ compensation). Because Appellant is not a “member of the general public,” the statutory employee fiction does not apply. See, e.g., White, 599 F.2d at 53.

To the extent Appellant’s first, second, third, fourth, fifth, ninth, and eleventh points claim that the trial court erred by granting summary judgment because the FMCSR doctrines of statutory employee, nondelegable duty, or vicarious liability apply to the present facts, we overrule those points.

VI. NEGLIGENCE, NEGLIGENCE PER SE, GROSS NEGLIGENCE, AND RES IPSA LOQUITUR

Appellant claims in her fifth and seventh points that AAMS and PAVL were negligent and negligent per se by allegedly failing to provide safety training to Rocky and by failing to ensure Rocky’s compliance with various FMCSR. Likewise, in portions of her first, second, third, fourth, fifth, ninth, tenth, and eleventh points, Appellant argues that AAMS and PAVL possessed nondelegable duties under essentially the same FMCSR as follows: 49 C.F.R. § 375.207 (2008) (items that must be in advertisements); 49 C.F.R. § 383.35 (2008) (notification of previous employment); 49 C.F.R. § 392.1 (driving of commercial motor vehicles); 49 C.F.R. § 392.3 (2008) (ill or fatigued driver); 49 C.F.R. § 392.6 (schedules to conform with speed limits); 49 C.F.R. § 392.60 (unauthorized persons not to be transported); 49 C.F.R. § 390.13 (2008) (aiding or abetting violations); 49 C.F.R. § 390.3(e) (general applicability); 49 C.F.R. § 390.35 (2008) (certificates, reports, and records; falsification, reproduction, or alteration); 40 C.F.R. § 5.105 (2008) (definitions); 49 C.F.R. § 391.1 (2008) (scope of the rules in this part, additional qualifications; duties of carrier drivers); 49 C.F.R. § 391.15 (2008) (disqualification of drivers); and 49 C.F.R. § 391.23 (2008) (maximum driving time for property-carrying vehicles). In Appellant’s sixth point, she claims in three sentences that her pleading of the doctrine of res ipsa loquitur is sufficient to defeat AAMS’s and PAVL’s no-evidence summary judgment motions. In her twelfth point, she contends that a motor carrier can be liable for the gross negligence of its agents or vice principals.

A negligence cause of action requires proof of (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002).

Negligence per se is a concept adopted by the civil courts in which a duty is based on a standard of conduct created by a statute rather than on the reasonably prudent person test used in pure negligence claims. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex.1997); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 839 (Tex.App.-Fort Worth 2006, no pet.) (op. on reh’g.) (discussing negligence per se in the context of nondelegable duties under the FMCSR). In a negligence per se case, the factfinder is not asked to decide whether the defendant acted as a reasonably prudent person would have acted under the same or similar circumstances; instead, the statute itself states what a reasonably prudent person would have done. Omega Contracting, 191 S.W.3d at 839. If an excuse is not raised, the only inquiry for the factfinder is whether the defendant violated the statute and, if so, whether the violation was a proximate cause of the injury. Id.

To prove that a defendant’s negligence constituted gross negligence, a plaintiff must prove two elements: (1) that viewed objectively from the actor’s standpoint, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) that the actor must have had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Id.

Here, AAMS and PAVL both filed no-evidence motions for summary judgment on the issue of causation. Because causation is an element of Appellant’s negligence, negligence per se, and gross negligence claims, even if summary judgment evidence existed that AAMS and PAVL were negligent, violated one of the statutory duties alleged by Appellant, or were grossly negligent, in light of AAMS’s and PAVL’s no-evidence motions on the issue of causation, Appellant had the burden to come forward with more than a scintilla of evidence that AAMS’s negligence was a proximate cause of the accident, that AAMS’s and PAVL’s alleged statutory FMCSR violations were a proximate cause of the accident, and that PAVL’s alleged gross negligence was a proximate cause of the accident. See, e.g., D. Houston, Inc., 92 S.W.3d at 454; Mobil Oil Corp., 968 S.W.2d at 921; Omega Contracting, 191 S.W.3d at 839. Appellant points us to no such summary judgment evidence; AAMS’s and PAVL’s summary judgment evidence establishes that Rocky had no trips scheduled after this one, Rocky was told he did not have to return to Dallas on the evening of the accident, and Rocky had not exceeded the number of hours he was permitted to drive. Because no summary judgment evidence exists that any violation of any FMCSR by AAMS or PAVL proximately caused the accident, we overrule Appellant’s seventh, tenth, and twelfth points and the balance of her first, second, third, fourth,0 fifth, ninth and eleventh points.

0. Within her fourth point, Appellant claims AAMS negligently entrusted the truck to Rocky. Because the summary judgment evidence conclusively established that Rocky was not driving at the time of the accident, any negligent entrustment to Rocky, as a matter of law, was not a proximate cause of the accident, and the trial court did not err by granting AAMS’s and PAVL’s no-evidence-of-causation summary judgment motions on Appellant’s theory that AAMS or PAVL negligently entrusted the truck to Rocky.

Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing that caused the injury is shown to have been under the management and control of the alleged wrongdoer. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990). The effect of successfully invoking the res ipsa loquitur doctrine is that the plaintiff can survive no-evidence procedural challenges. See Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.1975) (explaining that no presumption of defendant’s negligence arises, instead the jury is merely free to infer negligence; the plaintiff continues to have burden of persuading jury by preponderance of evidence that defendant was negligent).

Here, Appellant has not successfully invoked the doctrine of res ipsa loquitur to avoid AAMS’s and PAVL’s no-evidence summary judgment challenges. Appellant did not establish that the thing that caused the injury-here, the driver of the commercial motor vehicle, who was not Rocky-was under the management and control of the alleged wrongdoer-AAMS or PAVL. That is, because neither Cisneros nor Ramirez were actual or statutory employees of AAMS or PAVL, they were not under AAMS’s or PAVL’s control.

We overrule Appellant’s sixth point.

VII. NEGLIGENT ENTRUSTMENT

In her eighth point, Appellant argues that the trial court erred by granting summary judgment on her negligent entrustment claim because a fact issue exists as to whether “AAMS trusted its vehicle to Alejandro Ramirez and/or Alejandro Cisneros” and “knew or should have known Alejandro Ramirez and/or Alejandro Cisnersos were unlicensed, incompetent, or reckless.”

To establish negligent entrustment of an automobile, a plaintiff must prove the following elements: (1) the owner entrusted the automobile, (2) to a person who was an incompetent, or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver’s negligence proximately caused the accident and the plaintiff’s injuries. De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987)). AAMS and PAVL argue that the summary judgment evidence conclusively negates the first and second elements of negligent entrustment. They claim that they did not entrust the commercial motor vehicle to anyone except Rocky and that Rocky was not driving at the time of the accident. Because the summary judgment evidence does conclusively establish these two facts, and because no evidence exists that AAMS or PAVL entrusted the commercial motor vehicle to Ramirez or Cisneros or that AAMS or PAVL knew or should have known that Ramirez or Cisneros were reckless or incompetent drivers, the trial court did not err by granting summary judgment on Appellant’s negligent entrustment claim. See, e.g., Sheffield v. Drake, 255 S.W.3d 779, 786 (Tex.App.-Eastland 2008, pet. denied) (upholding no-evidence summary judgment granted on negligent entrustment claim because no evidence existed defendant entrusted vehicle to driver).

We overrule Appellant’s eighth point.

VIII. CONCLUSION

Having overruled Appellant’s twelve points on appeal, we affirm the trial court’s judgment.

United States District Court,

M.D. Pennsylvania.

Thomas SABO and Christine Sabo, His Wife, Plaintiffs

v.

Ariel SUAREZ et al., Defendants.

Civil Action No. 3:CV-08-1889.

July 31, 2009.

MEMORANDUM AND ORDER

THOMAS M. BLEWITT, United States Magistrate Judge.

I. Background

Plaintiffs, Thomas and Christine Sabo, husband and wife, filed a Complaint on October 14, 2006, in the Middle District of Pennsylvania. Plaintiffs basically allege that Defendant Ariel Suarez, while a truck driver for Defendant Bicks Transport, Inc. (“BTI”), acting within the scope of his employment for BTI, recklessly and negligently collided his tractor-trailer into Plaintiff Thomas Sabo’s vehicle on October 20, 2006, and caused Mr. Sabo serious injuries. Plaintiffs’ Complaint asserted seven (7) causes of actions against Defendants. On December 15, 2008, Defendants Suarez and BTI filed their Answer to the Complaint. (Doc. 8).

Jurisdiction of this Court is based on diversity, 28 U.S.C. § 1332. (Doc. 1, p. 2).

As stated, Plaintiffs’ Complaint raises seven counts: Counts I and II, Thomas Sabo’s claim of Reckless Conduct against each Defendant; Count III, Thomas Sabo’s claim of Vicarious Liability against BTI; Counts IV and V, Thomas Sabo’s claim of Punitive Damages against both Defendants; Count VI, Thomas Sabo’s claim of Vicarious Liability for Punitive Damages against BTI; and Count VII, Christine Sabo’s claim of Loss of Consortium against both Defendants. (Doc. 33, Ex. A).

Discovery was originally scheduled to be completed by June 1, 2009. (Doc. 15). This was amended on May 26, 2009, and the discovery period was extended to end on August 1, 2009. (Doc. 32). On June 15, 2009, Plaintiffs filed the present Motion for Leave of Court to Permit Punitive Damages (Doc. 33), along with a Brief in Support. (Doc. 34). Defendants filed their opposition Brief on June 30, 2009 (Doc. 36), which was followed by a Supplemental Memorandum filed by the Plaintiffs on July 7, 2009. (Doc. 37).

Since both Plaintiffs and Defendants filed their Briefs in support of their respective positions, Plaintiffs’ Motion (Doc. 33) is ripe for disposition.

The parties have consented to the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Doc. 14 and January 26, 2009 docket entry).

II. Discussion.

Plaintiff Thomas Sabo seeks punitive damages against Defendant BTI, claiming the company was negligent with respect to its hiring/training/supervision procedures, and that it recklessly entrusted the tractor-trailer to Defendant Suarez, knowing Defendant Suarez to be an incompetent operator. In the alternative, the Plaintiffs allege that Defendant BTI is liable for punitive damages under vicarious liability. Plaintiff Thomas Sabo also asserts a claim for punitive damages against Defendant Suarez based on his driving the tractor-trailer through a red light.

A. Defendant Suarez

Plaintiffs are seeking to compel discovery for punitive damages against both Defendants Suarez and BTI. Plaintiffs allege that Defendant Suarez operated his tractor-trailer in a “manner which was reckless, willful, wanton, outrageous and malicious, so that he demonstrated a reckless indifference to and conscious disregard of the rights and safety of others.” (Doc. 34, pp. 5-6). They also allege that Defendant Suarez was driving recklessly and at a high rate of speed.

In Pennsylvania , it has been held that awarding punitive damages is warranted when conduct is outrageous “because of the defendant’s evil motive or his reckless indifference to the rights of others.” Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (2005). A plaintiff seeking to demonstrate that a defendant’s conduct was outrageous must first establish that the defendant possessed the requisite state of mind. Id., 870 A.2d at 770-71. The actions or inactions of a defendant must be intentional, reckless or malicious. Id. at 771; see also Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647, 651 (M.D.Pa., 2009). As the Hutchison Court stated, “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison, 870 A.2d at 772.

We apply Pennsylvania substantive law since this is a diversity case. See Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 563 (3d Cir.2003).

Here, Plaintiffs aver that Defendant Suarez traveled through a red light prior to impact with Thomas Sabo’s vehicle. (Doc. 34, p. 3). According to the Plaintiffs, “the weather was wet and foggy and visibility was poor.” (Doc. 34, p. 15). Plaintiffs state that the resulting impact pushed Mr. Sabo’s vehicle “sideways off the road surface, over a raised traffic island, through two signs and into a wooded and/or wetland area.” (Doc. 34, p. 3). Defendant Suarez was subsequently cited for failure to obey a traffic signal. (Id.). Plaintiffs claim that preceding the intersection were various warning signs, including a sign warning of the upcoming intersection and a yellow caution diamond, each allegedly coated with highly reflective materials to assist in their visibility in poor weather conditions. (Doc. 34, pp. 16-17).

Defendants’ counter argument is based on their contention that Mr. Suarez was traveling cautiously at the time of impact. (Doc. 36, p. 2). According to the Defendants, the tractor-trailer was proceeding somewhere between 10 and 25 mph  when it came across the intersection and impacted the side of Plaintiff’s vehicle, well under the posted 45 mph limit. (Id.). Defendants state that Trooper Brian Travis of the Pennsylvania State Police, the investigating officer, while he cited Defendant Suarez for failure to obey a traffic signal (i.e. the red light), he did not charge Defendant Suarez with any moving violations (i.e. speeding, driving too fast for conditions), nor was there any sign of impairment of Suarez from alcohol or narcotics. (Doc. 36, p. 3). Defendants also contend that Suarez was unfamiliar with the configuration of the road and the approaching intersection, since this was his first delivery to the particular destination. (Doc. 36, p. 2).

Defendants’ Brief lacks page numbers, in violation of Local Rule 5.1(c), M.D. Pa.

The investigating officer at the scene, estimated the speed of the tractor-trailer to be 10 mph prior to impact. Mr. Suarez estimated his own speed prior to the accident to be approximately 25 mph. Regardless, Defendant Suarez went through a red light and hit Plaintiff Thomas Sabo’s vehicle.

Based on the facts discussed above, we find that discovery should be allowed as it pertains to punitive damages against Defendant Suarez. Defendants themselves admit that Defendant Suarez is a “well-experienced tractor trailer operator who had obtained his Commercial Driver’s License (CDL) in 1994 and had worked steadily for approximately 10-12 years as a tractor trailer operator prior to the occurrence of this accident.” (Doc. 36, p. 4). They also provide an eyewitness statement that “[i]t was so foggy, you couldn’t see in front of you.” (Doc. 36, p. 3). Defendant Suarez’s conduct thus could be found to be outrageous since he drove through a red light and he should have been more cautious under the conditions. Defendants’ own evidence justifies the allowance of discovery regarding Plaintiff’s punitive damages claims to continue.

In Burke, 605 F.Supp.2d 647, 655, the Court allowed punitive damages to proceed against a well-experienced driver with significant training since it found that he should have consciously appreciated a risk of harm. While in the Burke case, the risk of harm was speeding, it could reasonably be found in our case that a driver with the type of experience Suarez undisputedly had should have recognized the risk of driving his tractor trailer in densely foggy, wet conditions through an unfamiliar territory.

Further, Defendants’ argument that Suarez was traveling with caution at a low rate of speed through the red light does not convince the Court that discovery for punitive damages should be precluded. Defendants argue that Suarez was not acting recklessly when he drove through the red light because he was traveling cautiously below the posted 45 mph speed limit. (Doc. 36, p. 8). They also contend that “[i]t is common knowledge that the most important thing to do when confronting dense fog is to slow down and to proceed with caution.” (Doc. 36, pp. 8-9). However, despite the claim that Defendant Suarez was proceeding with caution, the fact remains that he went through a red light and crossed an intersection into the lane in which Plaintiff Thomas Sabo was legally driving, and collided with Sabo. Thus, Defendant Suarez certainly could have been more cautions, in which case no accident would have occurred.

Therefore, we find there is enough information at this point to allow discovery on the issue of punitive damages as they pertain to Plaintiff Thomas Sabo’s claims against Defendant Suarez.

B. Defendant BTI

Plaintiffs argue they should be entitled to discovery with respect to Thomas Sabo’s claim for punitive damages against Defendant BTI because they allege that Defendant BTI was negligent in its “hiring, training and supervision procedures and their reckless entrustment of the tractor-trailer to Defendant Suarez.” (Doc. 34, p. 4). They allege that Defendant Suarez was a substandard candidate for hire as a tractor-trailer operator for Defendant BTI since they claim that Defendant Suarez had a previous speeding ticket in New Mexico, a suspension and/or revocation of his license, multiple moving violations, falsified/missing driver logs, little to no experience in the field, and the inability to speak/read/write English fluently. (Id.).

Plaintiffs contend that these facts about Defendant Suarez were readily available to Defendant BTI, since Suarez listed his license suspension on his Driver Application. (Doc. 34 p. 4). They also contend that any experience that Defendant Suarez had was driving a van, not a tractor-trailer. (Doc. 34, pp. 4-5). Also, while Suarez’s Driver Application stated that he had “no traffic convictions within the previous three years,” Plaintiffs claim Defendant Suarez actually had a speeding ticket in New Mexico on April 9, 2004. (Doc. 34, p. 5). According to the Plaintiffs, Defendant Suarez also pled guilty to a traffic citation he was issued for “operating a vehicle in violation of equipment standards .” (Id.). They also claim Defendant Suarez’s driver logs from October 7, 2006 through October 28, 2006 were never produced, and that the logs which were produced “show falsified information with regard to times and/or distances.” (Id.).

In Defendants’ Opposition Brief, they state that Defendant Suarez’s 2004 New Mexico speeding ticket was issued approximately 18 months prior to his hiring by Defendant BTI in January 2006.

Defendants claim that they were diligent in their hiring practices and that they received a “three year Motor Vehicle Report on Mr. Suarez and already discussed with Mr. Suarez the fact that his license had been previously suspended for unpaid tickets.” (Doc. 36, p. 11). Defendants state that they also contacted Defendant Suarez’s prior employer and were satisfied about both the licence suspension and the speeding ticket from New Mexico in 2004, which had not been identified by Defendant Suarez on his application. (Id.). According to Defendants, the license suspension was the result of unpaid parking tickets which appear to have resulted from “not having liability insurance in place on his personal vehicle.” (Doc. 34, p. 5). Defendants explain that the violations that Defendant Suarez received were comprised of “a 14-hour rule violation, failing to have his medical certificate with him, having over weight tandem axles and unspecified ‘operating without equipment’ violation[s].” (Id.). As mentioned earlier, Defendants state that Defendant Suarez’s experience is supported by the fact that he received his CDL in 1994 and had 10-12 years of prior driving experience. As to Plaintiffs’ argument that Defendant Suarez has substandard English abilities, Defendants claim Plaintiffs are now aware that Defendant Suarez was born in California and raised in Texas, and he speaks English “very fluently.” (Doc. 36, pp. 4-5).

As pertains to the driving log discrepancy, Defendants admit the logs two weeks prior to the accident cannot be located (October 7, 2009-October 28, 2009). (Doc. 34, p. 5). Defendants assert that Suarez believes he turned the missing logs in, and that the office is currently attempting to locate these logs. Defendants acknowledge that the missing logs can be seen as a negative inference. (Doc. 34, p. 6). Defendants do not address the Plaintiffs’ claims that the logs that are available contain multiple discrepancies. Plaintiffs, however, contend that without the missing logs or “blackbox” data, and based on Defendant Suarez’s history of misrepresentations in his available logs, there is nothing to prevent Defendants from arguing that Suarez was over-tired from driving past the allowable number of hours, and that he was exceeding the speed limit. (Doc. 37, p. 8).

Plaintiffs again argue in their Supplemental Brief that Defendant Suarez had allegedly lied on his Driver Application, a fact which they state was known by Defendant BTI. (Doc. 37, p. 6). According to Plaintiffs, Defendant BTI would have uncovered Defendant Suarez’s misrepresentation about his convictions upon receipt of his three-year Motor Vehicle Report, which detailed Suarez’s 2004 New Mexico speeding citation, along with other violations. (Id. and Ex. K). Plaintiffs also contend that after his employment commenced with Defendant BTI, Defendant Suarez was issued several citations, including numerous Federal Motor Carrier Violations in Kansas (including at least two 14 Hour Rule violations) and a speeding citation in Tennessee on May 20, 2006. Plaintiffs cite to their Exhibit L attached to their Doc. 37 Brief for support.

The Court finds there is enough evidence to allow discovery regarding Thomas Sabo’s punitive damages claims against Defendant BTI. It appears at this point that enough information exists that Defendant BTI may have been aware that Defendant Suarez was not suitable to operate a tractor-trailer. This Court has previously allowed claims of punitive damages to proceed against Defendant trucking companies who have been aware of misrepresentations in driver’s logs and failed to address the misrepresentations. Burke v. TransAm Trucking Inc., 605 F.SUpp.2d 647, 656 (M.D.Pa.2009). Defendants have not spoken to Plaintiffs’ claim that Defendant Suarez made misrepresentations in several of the available driver’s logs. This Court has also allowed punitive damages to proceed against Defendant trucking companies who allowed a driver to operate a tractor-trailer despite their awareness of a driving record filled with “speeding, driving over hours and log falsification,” which is apparently what is alleged here. Id.

In addition, the Court notes that in Pennsylvania, Defendant BTI can also have punitive damages awarded against it for the actions of Defendant Suarez based on vicarious liability. Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa.Super.1998).

Accordingly, the Court will grant Plaintiffs’ Motion for Leave of Court to Permit Punitive Damages Discovery against both Defendants.

The Court will also include in its Order a further extension of the August 1, 2009 discovery deadline to allow punitive damages discovery, as well as an extension of all other current case management deadlines.

An appropriate Order follows.

ORDER

AND NOW, this 31st day of July, 2009, based on the foregoing Memorandum, IT IS HEREBY ORDERED THAT:

1. Plaintiffs’ Motion for Leave of Court to Permit Punitive Damages Discovery (Doc. 33) is GRANTED.

2. The discovery deadline is extended to October 1, 2009.

3. All other case management deadlines are extended for a period of sixty (60) days, as follows:

a. Expert Reports. Reports of Plaintiffs’ retained experts shall be produced by November 1, 2009. Reports of Defendants’ retained experts shall be produced by December 1, 2009. Supplementations shall be due January 1, 2010.

b. Joinder of parties. Any joinder of parties shall be accomplished by November 1,2009.

c. Amendments. Amendments to the pleadings shall be filed by November 1, 2009. Said amendment shall be accompanied by either motion or written consent by adverse party, as required by Rule 15(a), Fed.R.Civ.P.

d. Dispositive Motions. All case dispositive motions shall be filed by December 1,2009.